ANKIT KOHLIversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 18598 of 2026

Ankit Kohli
                                                              .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Applicant(s)             :   Anuj Srivastava, Prateek Dawar
Counsel for Opposite Party(s)        :   G.A.

Court No. - 77
                 HON'BLE SAURABH SRIVASTAVA, J.

1. This matter has been taken up in the mentioned category.

2. Heard learned counsel for applicant, learned A.G.A. for the State and Ms.
Katyayini, learned counsel for opposite party no.2, who preferred
vakalatnama in Court today, which is taken on record.

3. Present application has been preferred with the prayer to quash the
charge-sheet dated 22.09.2025 and cognizance/summoning order dated
27.11.2025 as well as entire proceedings of Criminal Case No.22070 of 2025
(State vs. Mukesh Kohli and Others) arising out of Case Crime No.131 of
2025, under Sections 318(4), 316(2), 351(2), 352 BNS, P.S. Civil Lines,
District- Meerut, pending in the court of learned ACJM, Meerut.

4. Learned counsel appearing on behalf of applicant has challenged the
impugned charge-sheet along with cognizance/summoning order and entire
proceedings of the present case precisely on the ground that sections 318(4)
& 316(2) BNS, i.e., (sections 420 & 406 in IPC) cannot go together in the
same breath as per the proposition of law settled by Hon'ble Supreme Court
in the case of Delhi Race Club (1940) Ltd. and others vs. State of Uttar
Pradesh and another reported in 2024 10 SCC 690. The relevant portion
of the said judgment is being reproduced hereinbelow:-

     "38. In our view, the plain reading of the complaint fails to spell
     out any of the aforesaid ingredients noted above. We may only
     say, with a view to clear a serious misconception of law in the
     mind of the police as well as the courts below, that if it is a case
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     of the complainant that offence of criminal breach of trust as
     defined under Section 405 IPC, punishable under Section 406
     IPC, is committed by the accused, then in the same breath it
     cannot be said that the accused has also committed the offence of
     cheating as defined and explained in Section 415 IPC, punishable
     under Section 420 IPC.

     41. The distinction between mere breach of contract and the
     offence of criminal breach of trust and cheating is a fine one. In
     case of cheating, the intention of the accused at the time of
     inducement should be looked into which may be judged by a
     subsequent conduct, but for this, the subsequent conduct is not
     the sole test. Mere breach of contract cannot give rise to a
     criminal prosecution for cheating unless fraudulent or dishonest
     intention is shown right from the beginning of the transaction i.e.
     the time when the offence is said to have been committed.
     Therefore, it is this intention, which is the gist of the offence.

     43. There is a distinction between criminal breach of trust and
     cheating. For cheating, criminal intention is necessary at the time
     of making a false or misleading representation i.e. since
     inception. In criminal breach of trust, mere proof of entrustment
     is sufficient. Thus, in case of criminal breach of trust, the
     offender is lawfully entrusted with the property, and he
     dishonestly misappropriated the same. Whereas, in case of
     cheating, the offender fraudulently or dishonestly induces a
     person by deceiving him to deliver any property. In such a
     situation, both the offences cannot co-exist simultaneously.

     55. It is high time that the police officers across the country are
     imparted proper training in law so as to understand the fine
     distinction between the offence of cheating vis-vis criminal
     breach of trust. Both offences are independent and distinct. The
     two offences cannot coexist simultaneously in the same set of
     facts. They are antithetical to each other. The two provisions of
     IPC (now BNS, 2023) are not twins that they cannot survive
     without each other."

5. On the other hand, learned A.G.A. and learned counsel for opposite party
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                                    no.2 vehemently opposed the prayer sought through the instant application
                                    but unable to dispute the settled proposition of law as relied upon by the
                                    learned counsel appearing for applicant.

                                    6. After hearing learned counsel for the parties, going through the record of
                                    the case and the judgment of the Hon'ble Supreme Court rendered in the case
                                    of Delhi Race Club (Supra), it is crystal clear that both the sections 318(4)
                                    & 316(2) BNS, i.e., (sections 420 & 406 in IPC) cannot go in the same
                                    breath and as such, cognizance/summoning order dated 27.11.2025 passed
                                    in Criminal Case No.22070 of 2025 (State vs. Mukesh Kohli and Others)
                                    arising out of Case Crime No.131 of 2025, under Sections 318(4), 316(2),
                                    351(2), 352 BNS, P.S. Civil Lines, District- Meerut, pending in the court of
                                    learned ACJM, Meerut, is hereby quashed. Matter is hereby remitted back
                                    to learned court concerned for passing fresh order of taking cognizance of
                                    offence, if required, in light of the proposition of law settled by Hon'ble
                                    Supreme Court in the case of Delhi Race Club (supra).

                                    7. Accordingly, the instant application stands allowed in part.

                                    May 6, 2026
                                    Saif
                                                                                        (Saurabh Srivastava,J.)




Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad